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2006 Federal Sentencing Guidelines

CHAPTER FOUR - PART A - CRIMINAL HISTORY

§4A1.2. Definitions and Instructions
for Computing Criminal History

(1) The term "prior sentence" means any sentence previously imposed upon
adjudication of guilt, whether by guilty plea, trial, or plea of nolocontendere,
for conduct not part of the instant offense.

(2) Prior sentences imposed in unrelated cases are to be counted separately.
Prior sentences imposed in related cases are to be treated as one sentence
for purposes of §4A1.1(a), (b), and (c). Use the longest sentence of
imprisonment if concurrent sentences were imposed and the aggregate sentence
of imprisonment imposed in the case of consecutive sentences.

(3) A conviction for which the imposition or execution of sentence was totally
suspended or stayed shall be counted as a prior sentence under §4A1.1(c).

(4) Where a defendant has been convicted of an offense, but not yet sentenced,
such conviction shall be counted as if it constituted a prior sentence under §4A1.1(c)
if a sentence resulting from that conviction otherwise would be countable.
In the case of a conviction for an offense set forth in
§4A1.2(c)(1), apply this provision only where the sentence for such
offense would be countable regardless of type or length.

"Convicted of an offense," for the purposes of this provision, means that
the guilt of the defendant has been established, whether by guilty plea,
trial, or plea of nolocontendere.

(b) Sentence of Imprisonment
Defined

(1) The term "sentence of imprisonment" means a sentence of incarceration
and refers to the maximum sentence imposed.

(2) If part of a sentence of imprisonment was suspended, "sentence of imprisonment" refers
only to the portion that was not suspended.

(c) Sentences Counted and
Excluded

Sentences for all felony offenses are counted. Sentences for misdemeanor and
petty offenses are counted, except as follows:

(1) Sentences for the following prior offenses and offenses similar to them,
by whatever name they are known, are counted only if (A) the sentence was
a term of probation of at least one year or a term of imprisonment of at
least thirty days, or (B) the prior offense was similar to an instant offense:

Careless or reckless driving
Contempt of court
Disorderly conduct or disturbing the peace
Driving without a license or with a revoked or suspended license
False information to a police officer
Fish and game violations
Gambling
Hindering or failure to obey a police officer
Insufficient funds check
Leaving the scene of an accident
Local ordinance violations (excluding local ordinance violations that are
also criminal offenses under state law)
Non-support
Prostitution
Resisting arrest
Trespassing.

(2) Sentences for the following prior offenses and offenses similar to them,
by whatever name they are known, are never counted:

(1) If the defendant was convicted as an adult and received a sentence of
imprisonment exceeding one year and one month, add 3 points under §4A1.1(a)
for each such sentence.

(2) In any other case,

(A) add 2 points under §4A1.1(b) for each adult or juvenile sentence
to confinement of at least sixty days if the defendant was released from
such confinement within five years of his commencement of the instant offense;

(B) add 1 point under §4A1.1(c) for each adult or juvenile sentence
imposed within five years of the defendant’s commencement of the
instant offense not covered in (A).

(e) Applicable Time Period

(1) Any prior sentence of imprisonment exceeding one year and one month
that was imposed within fifteen years of the defendant’s commencement
of the instant offense is counted. Also count any prior sentence of imprisonment
exceeding one year and one month, whenever imposed, that resulted in the
defendant being incarcerated during any part of such fifteen-year period.

(2) Any other prior sentence that was imposed within ten years of the defendant’s
commencement of the instant offense is counted.

(3) Any prior sentence not within the time periods specified above is not
counted.

(4) The applicable time period for certain sentences resulting from offenses
committed prior to age eighteen is governed by
§4A1.2(d)(2).

(f) Diversionary Dispositions

Diversion from the judicial process without a finding of guilt (e.g.,
deferred prosecution) is not counted. A diversionary disposition resulting
from a finding or admission of guilt, or a plea of nolocontendere,
in a judicial proceeding is counted as a sentence under §4A1.1(c) even
if a conviction is not formally entered, except that diversion from juvenile
court is not counted.

(g) Military Sentences

Sentences resulting from military offenses are counted if imposed by a general
or special court martial. Sentences imposed by a summary court martial or Article
15 proceeding are not counted.

(h) Foreign Sentences

Sentences resulting from foreign convictions are not counted, but may be considered
under §4A1.3 (Adequacy of Criminal History Category).

(i) Tribal Court Sentences

Sentences resulting from tribal court convictions are not counted, but may
be considered under §4A1.3 (Adequacy of Criminal History Category).

(j) Expunged Convictions

Sentences for expunged convictions are not counted, but may be considered
under §4A1.3 (Adequacy of Criminal History Category).

(1) In the case of a prior revocation of probation, parole, supervised release,
special parole, or mandatory release, add the original term of imprisonment
to any term of imprisonment imposed upon revocation. The resulting total
is used to compute the criminal history points for §4A1.1(a), (b), or
(c), as applicable.

(2) (A) Revocation of probation, parole, supervised release, special parole,
or mandatory release may affect the points for
§4A1.1(e) in respect to the recency of last release from confinement.

(B) Revocation of probation, parole, supervised release,
special parole, or mandatory release may affect the time period under which
certain sentences are counted as provided in
§4A1.2(d)(2) and (e). For the purposes of determining the applicable
time period, use the following: (i) in the case of an adult term of imprisonment
totaling more than one year and one month, the date of last release from
incarceration on such sentence (see §4A1.2(e)(1));
(ii) in the case of any other confinement sentence for an offense committed
prior to the defendant’s eighteenth birthday, the date of the defendant’s
last release from confinement on such sentence (see §4A1.2(d)(2)(A));
and (iii) in any other case, the date of the original sentence (see §4A1.2(d)(2)(B)
and (e)(2)).

(l) Sentences on Appeal

Prior sentences under appeal are counted except as expressly provided below.
In the case of a prior sentence, the execution of which has been stayed pending
appeal, §4A1.1(a), (b), (c), (d), and (f) shall apply as if the execution
of such sentence had not been stayed; §4A1.1(e) shall not apply.

(m) Effect of a Violation
Warrant

For the purposes of §4A1.1(d), a defendant who commits the instant offense
while a violation warrant from a prior sentence is outstanding (e.g.,
a probation, parole, or supervised release violation warrant) shall be deemed
to be under a criminal justice sentence if that sentence is otherwise countable,
even if that sentence would have expired absent such warrant.

(n) Failure to Report for
Service of Sentence of Imprisonment

For the purposes of §4A1.1(d) and (e), failure to report for service
of a sentence of imprisonment shall be treated as an escape from such sentence.

(o) Felony Offense

For the purposes of §4A1.2(c), a "felony offense" means any federal,
state, or local offense punishable by death or a term of imprisonment exceeding
one year, regardless of the actual sentence imposed.

(p) Crime of Violence Defined

For the purposes of §4A1.1(f), the definition of "crime of violence" is
that set forth in §4B1.2(a).

Commentary

Application Notes:

1. Prior Sentence. "Prior
sentence" means a sentence imposed prior to sentencing on the instant offense,
other than a sentence for conduct that is part of the instant offense. See §4A1.2(a).
A sentence imposed after the defendant’s commencement of the instant
offense, but prior to sentencing on the instant offense, is a prior sentence
if it was for conduct other than conduct that was part of the instant offense.
Conduct that is part of the instant offense means conduct that is relevant
conduct to the instant offense under the provisions of §1B1.3 (Relevant
Conduct).

Under §4A1.2(a)(4), a conviction for which the defendant has not
yet been sentenced is treated as if it were a prior sentence under §4A1.1(c)
if a sentence resulting from such conviction otherwise would have been counted.
In the case of an offense set forth in §4A1.2(c)(1) (which lists certain
misdemeanor and petty offenses), a conviction for which the defendant has
not yet been sentenced is treated as if it were a prior sentence
under
§4A1.2(a)(4) only where the offense is similar to the instant offense
(because sentences for other offenses set forth in
§4A1.2(c)(1) are counted only if they are of a specified type and length).

2. Sentence of Imprisonment.
To qualify as a sentence of imprisonment, the defendant must have actually
served a period of imprisonment on such sentence (or, if the defendant escaped,
would have served time). See §4A1.2(a)(3)
and (b)(2). For the purposes of applying §4A1.1(a), (b), or (c), the
length of a sentence of imprisonment is the stated maximum (e.g.,
in the case of a determinate sentence of five years, the stated maximum is
five years; in the case of an indeterminate sentence of one to five years,
the stated maximum is five years; in the case of an indeterminate sentence
for a term not to exceed five years, the stated maximum is five years; in
the case of an indeterminate sentence for a term not to exceed the defendant’s
twenty-first birthday, the stated maximum is the amount of time in pre-trial
detention plus the amount of time between the date of sentence and the defendant’s
twenty-first birthday). That is, criminal history points are based on the
sentence pronounced, not the length of time actually served. See §4A1.2(b)(1)
and (2). A sentence of probation is to be treated as a sentence under
§4A1.1(c) unless a condition of probation requiring imprisonment of at
least sixty days was imposed.

3. Related Cases. Prior
sentences are not considered related if they were for offenses that were
separated by an intervening arrest (i.e.,
the defendant is arrested for the first offense prior to committing the second
offense). Otherwise, prior sentences are considered related if they resulted
from offenses that (A) occurred on the same occasion, (B) were part
of a single common scheme or plan, or (C) were consolidated for trial or
sentencing. The court should be aware that there may be instances in which
this definition is overly broad and will result in a criminal history score
that underrepresents the seriousness of the defendant’s criminal history
and the danger that he presents to the public. For example, if a defendant
was convicted of a number of serious non-violent offenses committed on different
occasions, and the resulting sentences were treated as related because the
cases were consolidated for sentencing, the assignment of a single set of
points may not adequately reflect the seriousness of the defendant’s
criminal history or the frequency with which he has committed crimes. In
such circumstances, an upward departure may be warranted. Note that the above
example refers to serious non-violent offenses. Where prior related sentences
result from convictions of crimes of violence, §4A1.1(f) will apply.

4. Sentences Imposed in the Alternative.
A sentence which specifies a fine or other non-incarcerative disposition
as an alternative to a term of imprisonment (e.g.,
$1,000 fine or ninety days’ imprisonment) is treated as a non-imprisonment
sentence.

5. Sentences for Driving While
Intoxicated or Under the Influence. Convictions for driving while
intoxicated or under the influence (and similar offenses by whatever name
they are known) are counted. Such offenses are not minor traffic infractions
within the meaning of §4A1.2(c).

6. Reversed, Vacated, or Invalidated
Convictions. Sentences resulting from convictions that (A) have
been reversed or vacated because of errors of law or because of subsequently
discovered evidence exonerating the defendant, or (B) have been ruled constitutionally
invalid in a prior case are not to be counted. With respect to the current
sentencing proceeding, this guideline and commentary do not confer upon
the defendant any right to attack collaterally a prior conviction
or sentence beyond any such rights otherwise recognized in law (e.g.,
21 U.S.C. § 851 expressly provides that a defendant may
collaterally attack certain prior convictions).

Nonetheless, the criminal conduct underlying any conviction that is not
counted in the criminal history score may be considered pursuant to §4A1.3
(Adequacy of Criminal History Category).

7. Offenses Committed Prior to
Age Eighteen. Section 4A1.2(d) covers offenses committed prior to
age eighteen. Attempting to count every juvenile adjudication would have
the potential for creating large disparities due to the differential availability
of records. Therefore, for offenses committed prior to age eighteen, only
those that resulted in adult sentences of imprisonment exceeding one year
and one month, or resulted in imposition of an adult or juvenile sentence
or release from confinement on that sentence within five years of the defendant’s
commencement of the instant offense are counted. To avoid disparities from
jurisdiction to jurisdiction in the age at which a defendant is considered
a "juvenile," this provision applies to all offenses committed prior to
age eighteen.

8. Applicable Time Period.
Section 4A1.2(d)(2) and (e) establishes the time period within which prior
sentences are counted. As used in §4A1.2(d)(2) and (e), the term "commencement
of the instant offense" includes any relevant conduct. See §1B1.3
(Relevant Conduct). If the court finds that a sentence imposed outside this
time period is evidence of similar, or serious dissimilar, criminal conduct,
the court may consider this information in determining whether an upward
departure is warranted under §4A1.3 (Adequacy of Criminal History Category).

9. Diversionary Dispositions.
Section 4A1.2(f) requires counting prior adult diversionary dispositions
if they involved a judicial determination of guilt or an admission of guilt
in open court. This reflects a policy that defendants who receive the benefit
of a rehabilitative sentence and continue to commit crimes should not be
treated with further leniency.

10. Convictions Set Aside or
Defendant Pardoned. A number of jurisdictions have various procedures
pursuant to which previous convictions may be set aside or the defendant
may be pardoned for reasons unrelated to innocence or errors of law, e.g.,
in order to restore civil rights or to remove the stigma associated with
a criminal conviction. Sentences resulting from such convictions are to
be counted. However, expunged convictions are not counted. §4A1.2(j).

11. Revocations to be Considered.
Section 4A1.2(k) covers revocations of probation and other conditional sentences
where the original term of imprisonment imposed, if any, did not exceed one
year and one month. Rather than count the original sentence and the resentence
after revocation as separate sentences, the sentence given upon revocation
should be added to the original sentence of imprisonment, if any, and the
total should be counted as if it were one sentence. By this approach, no
more than three points will be assessed for a single conviction, even if
probation or conditional release was subsequently revoked. If the sentence
originally imposed, the sentence imposed upon revocation, or the total of
both sentences exceeded one year and one month, the maximum three points
would be assigned. If, however, at the time of revocation another sentence
was imposed for a new criminal conviction, that conviction would be computed
separately from the sentence imposed for the revocation.

Where a revocation applies to multiple sentences, and such sentences are
counted separately under §4A1.2(a)(2), add the term of imprisonment
imposed upon revocation to the sentence that will result in the greatest
increase in criminal history points. Example:
A defendant was serving two probationary sentences, each counted separately
under §4A1.2(a)(2); probation was revoked on both sentences as a result
of the same violation conduct; and the defendant was sentenced to a total
of 45 days of imprisonment. If one sentence had been a "straight" probationary
sentence and the other had been a probationary sentence that had required
service of 15 days of imprisonment, the revocation term of imprisonment (45
days) would be added to the probationary sentence that had the 15-day term
of imprisonment. This would result in a total of 2 criminal history points
under §4A1.1(b) (for the combined 60-day term of imprisonment)
and 1 criminal history point under §4A1.1(c) (for the other probationary
sentence).

12. Local Ordinance Violations.
A number of local jurisdictions have enacted ordinances covering certain
offenses (e.g., larceny and
assault misdemeanors) that are also violations of state criminal law. This
enables a local court (e.g.,
a municipal court) to exercise jurisdiction over such offenses. Such offenses
are excluded from the definition of local ordinance violations in §4A1.2(c)(1)
and, therefore, sentences for such offenses are to be treated as if the defendant
had been convicted under state law.

13. Insufficient Funds Check. "Insufficient
funds check," as used in §4A1.2(c)(1), does not include any conviction
establishing that the defendant used a false name or non-existent account.

Background: Prior sentences,
not otherwise excluded, are to be counted in the criminal history score,
including uncounseled misdemeanor sentences where imprisonment was not imposed.